In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00169-CR
EX PARTE ADOUN PHOMMIVONG
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 64,888-C, Honorable Ana Estevez, Presiding
November 15, 2016
ABATEMENT AND REMAND
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Adoun Phommivong, appeals the denial of a writ of habeas corpus
filed under Article 11.072 of the Texas Code of Criminal Procedure. The court
reporter’s record was filed on April 26, 2016. On June 15, 2016, we abated this appeal
and remanded the cause to the trial court after appellant failed to make payment
arrangements for the clerk’s record. The trial clerk’s record was filed on June 21, 2016,
before the trial court’s hearing, and we reinstated the appeal on our docket the following
day.
Consequently, appellant’s brief was originally due to be filed by July 22, 2016.
See TEX. R. APP. P. 31.1, 38.6. We granted appellant three extensions to file his brief,
and his brief was due by October 12. On October 19, this Court sent appellant notice
that his brief was past due. In that letter, this Court informed appellant that, if he failed
to file his brief by October 31, the appeal would be abated and the cause remanded to
the trial court without further notice. To date, appellant has not filed his brief nor
responded to our October 19 correspondence.
Accordingly, we now abate this appeal and remand the cause to the trial court.
See TEX. R. APP. P. 38.8(b)(2). The clerk’s record reflects that appellant has retained D.
Chris Hesse to represent him on appeal. Upon remand, the judge of the trial court is
directed to immediately cause notice to be given of and to conduct a hearing to
determine: (1) whether appellant desires to prosecute this appeal; (2) whether present
counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute
this appeal and present counsel has abandoned the appeal, whether appellant is
indigent; (4) if appellant desires to prosecute this appeal and is indigent, whether
appellant’s present counsel should be replaced by appointed counsel; and (5) what
orders, if any, should be entered to assure the filing of appropriate notices and
documentation to dismiss appellant’s appeal if appellant does not desire to prosecute
this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal
will be diligently pursued. If the trial court determines that the present attorney for
appellant should be replaced, the trial court should cause the Clerk of this Court to be
furnished the name, address, email address, and State Bar of Texas identification
number of the newly-appointed or newly-retained attorney.
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The trial court is directed to: (1) conduct any necessary hearings; (2) make and
file findings of fact, conclusions of law, and recommendations addressing the
determinations identified above and cause them to be included in a supplemental clerk’s
record; (3) cause the hearing proceedings to be transcribed and included in a
supplemental reporter’s record; (4) have a record of the proceedings made to the extent
any of the proceedings are not included in the supplemental clerk’s record or the
supplemental reporter’s record; and (5) cause the records of the proceedings to be sent
to this Court. See TEX. R. APP. P. 38.8(b)(3). In the absence of a request for extension
of time from the trial court, the supplemental clerk’s record, supplemental reporter’s
record, and any additional proceeding records, including any orders, findings,
conclusions, and recommendations, are to be sent so as to be received by the Clerk of
this Court not later than December 15, 2016.
Per Curiam
Do not publish.
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